SC Senate Bill 356

Notary Law Update: SC Senate Bill 356

State: South Carolina

Summary:

Senate Bill 356 comprehensively enacts Notary reforms long overdue. It contains definitions for important terms that impact how Notaries perform notarial acts, clear standards for identifying signers, provisions for assisting signers with physical challenges and a lengthy list of prohibited acts, all which are welcome changes. There are also some confusing provisions, which may require attention in future legislation or guidance from the Secretary of State.

Provides definitions for the following new terms: acknowledgment, affirmation, attest or attestation, commission, credible witness, jurat, moral turpitude, notarial act, notary act and notarization, notarial certificate, Notary Public and Notary, oath, official misconduct, personal appearance, personal knowledge or personally known, principal, record, satisfactory evidence, secretary, seal or stamp, subscribing witness, and verification or proof – the majority of which are based in whole or in part on the Model Notary Act of 2010.

Commissioning

Requires that an applicant for a Notary commission must: (a) be a registered voter in South Carolina; (2) read and write the English language; and (3) submit an application containing no significant misstatement or omission of fact.

Provides that the application for a commission must be signed with a written signature in pen and ink and the signature acknowledged before an officer authorized to administer oaths.

Clarifies that a Notary Public is a public officer of the state of South Carolina.

Notarial Acts

Authorizes Notaries to perform the following notarial acts: “attestations,” “signature witnessings” and “verification of fact.” (Note: These notarial acts are new in name to South Carolina. See below for comments suggesting that “attestations” and “verifications of fact” may not be new. Signature witnessings is new to South Carolina, but the new law contains no standards beyond listing it as an authorized act.

Defines “attestation” as the completion of a certificate by a Notary who has performed a notarial act. (Note: Based on the definition, it appears that an attestation is simply the completion of a notarial certificate. As listed in the new law, the statute reads “attestations and jurats,” implying a connection between these two acts as is the case with “oaths and affirmations. This view is substantiated by the new definition of “jurat,” which means a Notary’s certificate evidencing the administration of an oath or affirmation. The definition of attestation and jurat are very similar in this regard.)

Defines “verification” to mean essentially the act of taking the proof of execution by subscribing witness. (Note: It is unclear whether a verification of fact is synonymous with a proof, as the new definition states, or whether a verification of fact is something entirely different. There are no other standards on this duty in the new law).

Removes protests of commercial paper as a notarial act from the statute. (Note: the new statute allows Notaries to perform other acts as authorized by law. SCC 36-3-505 states that a protest is made by a Notary Public or other officer authorized to administer oaths in the place where the dishonor occurs. This statute may provide the authority for certain Notaries to continue to protest commercial instruments.)

Requires a record containing an acknowledgment to be signed while in the physical presence of the Notary and while being personally observed signing the record by the notary.

Identification of Principals and Subscribing Witnesses

Requires a Notary to identify a principal or subscribing witness based on personal knowledge or satisfactory evidence. (Note: the effect of the new definition of “principal” is that identification is required for acknowledgments, oaths and affirmations, and verifications or proofs. Prior law did not require identification for oaths and affirmations. Curiously, the new law does not say a person who is the subject of a signature witnessing must be identified.)

Defines “personal knowledge” or “personally known” as familiarity with an individual resulting from interactions with that individual over a period of time sufficient to eliminate any reasonable doubt that the individual has the identity claimed.

Defines “satisfactory evidence” as: (a) a current identification document issued by a federal or state government agency bearing a photograph, signature and physical description, and further states that a current passport without a physical description is acceptable; and (b) the oath or affirmation of a credible witness personally known to the Notary or of two witnesses who present an identification document that complies with (a) above.

Requires the Notary to reasonably believe that any credible witness is honest and reliable for the purpose of confirming to the Notary the identity of the signer and is not a party to or beneficiary of the transaction.

Notary Signature and Seal

Provides that a notarial act must be attested by: (a) the signature of the Notary exactly as shown on the commission; (b) the legible appearance of the Notary’s name as shown on the commission and provides that the Notary’s name may be ascertained from the Notary’s typed or printed name near the Notary’s signature or from elsewhere in the notarial certificate or from the Notary’ seal if the name is illegible; (c) the Notary’s commission expiration date, and provides that this date may be ascertained from the Notary’s stamp or seal or elsewhere in the notarial certificate.

Requires a Notary who notarizes a paper record to sign by hand in ink on the notarial certificate.

Provides that a Notary must affix the official signature only after the notarial act is performed.

Prohibits a Notary from signing a paper record using a facsimile stamp or an electronic or other printing method.

Allows a Notary with a disability to use a signature stamp that depicts the Notary’s signature in a clear and legible manner, upon prior approval of the Secretary.

Defines “seal” or “stamp” as a device for affixing on a paper record an image containing a Notary’s name, the words ‘Notary Public’, and the words ‘State of South Carolina’. (Note: The Secretary of State’s office confirmed that the Notary’s commission expiration date may appear in the seal.)

Provides that the seal or stamp device may be in the form of an ink stamp or an embosser.

Clarifies that the absence of the Notary’s commission expiration date on a notarial certificate does not render the notarial act invalid if the Notary’s title is affixed to it.

Notarial Certificates

Clarifies that by making or giving a notarial certificate, regardless of whether it is stated in the certificate, a Notary certifies that: (a) at the time the notarial act was performed and the notarial certificate was signed by the Notary, the Notary was lawfully commissioned and the Notary’s commission had neither expired nor been suspended; (b) the notarial act was performed within the geographic limits of the Notary’s commission; and (c) the notarial act was performed in accordance with the provisions Title 26, Chapter 1 of the South Carolina Code.

Clarifies that if the notarial certificate is for an acknowledgment or the administration of an oath or affirmation, by making or giving a notarial certificate, regardless of whether it is stated in the certificate, the person whose signature was notarized did not appear in the judgment of the Notary to be incompetent, lacking in understanding of the nature and consequences of the transaction requiring the notarial act, or to be acting involuntarily, under duress, or undue influence.

Clarifies that by making or giving a notarial certificate, regardless of whether it is stated in the certificate, the Notary was not prohibited from acting pursuant to Title 26, Chapter 1 of the South Carolina Code.

Provides that the inclusion of additional information in a notarial certificate, including the representative or fiduciary capacity in which a person signed or the means a Notary used to identify a principal, does not invalidate an otherwise sufficient notarial certificate.

Requires that a notarial certificate for an acknowledgment must comply with the Uniform Recognition of Acknowledgments Act (Title 26, Chapter 3 of the South Carolina Code).

Provides that a notarial certificate for the verification or proof of the signature of a principal by a subscribing witness taken by a Notary is sufficient and must be accepted in South Carolina if it is substantially in a form otherwise prescribed by the laws of South Carolina, or if it: (a) identifies the state and county in which the verification or proof occurred; (b) names the subscribing witness who appeared in person before the Notary; (c) names the principal whose signature on the record is to be verified or proven; (d) indicates that the subscribing witness certified to the Notary under oath or by affirmation that the subscribing witness is not a party to or beneficiary of the transaction, signed the record as a subscribing witness, and either (i) witnessed the principal sign the record, or (ii) witnessed the principal acknowledge the principal’s signature on the record; (e) states the date of the verification or proof; (f) contains the signature of the Notary who took the verification or proof; and (g) states the Notary’s commission expiration date.

Provides that a notarial certificate for an oath or affirmation taken by a Notary is sufficient and must be accepted in South Carolina if it is substantially in a form otherwise prescribed by the laws of South Carolina, or if it: (a) names the principal who appeared in person before the Notary unless the name of the principal otherwise is clear from the record itself; (b) indicates that the principal who appeared in person before the Notary signed the record in question and certified to the Notary under oath or by affirmation as to the truth of the matters stated in the record; (c) states the date of the oath or affirmation; (d) contains the signature of the Notary who took the oath or affirmation; and (e) states the Notary’s commission expiration date.

Provides that a notarial certificate made in another jurisdiction is sufficient in South Carolina if it is made in accordance with federal law or the laws of the jurisdiction where the notarial certificate was made.

Provides that on records to be filed, registered, recorded, or delivered in another state or jurisdiction of the United States, a South Carolina Notary may complete a notarial certificate that is required in that other state or jurisdiction.

Notarizing for Signers With Physical Challenges

Permits a Notary to certify the affixation of a signature by mark on a record presented for notarization if: (a) the mark is affixed in the presence of the Notary; (b) the Notary writes below the mark: ‘Mark affixed by (name of signer by mark) in presence of undersigned Notary’; and (c) the Notary notarizes the signature by performing an acknowledgment, oath or affirmation, jurat, or verification or proof.

Provides that if a principal is physically unable to sign or make a mark on a record presented for notarization, that principal may designate another person, who must be a disinterested party, as his designee, to sign on the principal’s behalf provided: (a) the principal directs the designee to sign the record in the presence of the Notary and two witnesses, who are either personally known to the Notary or identified by the Notary through satisfactory evidence, and who are unaffected by the record; (b) the designee signs the principal’s name in the presence of the principal, the Notary, and the two witnesses; (c) both witnesses sign their own names to the record near the principal’s signature; (d) the Notary writes below the principal’s signature: ‘Signature affixed by designee in the presence of (names and addresses of principal and witnesses)’; and (e) the Notary notarizes the signature through an acknowledgment, oath or affirmation, jurat, or verification or proof.

Permits a Notary to sign the name of a principal physically unable to sign or make a mark on a document presented for notarization if: (a) the principal directs the Notary to sign the record in the presence of two witnesses unaffected by the record; (b) the Notary signs the principal’s name in the presence of the principal and the witnesses; (c) both witnesses sign their own names to the record near the principal’s signature; (d) the Notary writes below the principal’s signature: “Signature affixed by the Notary at the direction of (name of principal unable to sign or make a mark) and also in the presence of (names and addresses of witnesses)”; and (e) the Notary notarizes the signature through an acknowledgment, oath or affirmation, jurat, or verification or proof.

Notary Fees

Allows a Notary to charge the following fees: (a) for an acknowledgment, $5 per signature; (b) for an oath or affirmation without a signature, $5 per person; (c) for a jurat, $5 per signature; (d) for a signature witnessing, $5 per signature; and (e) for a verification of fact, $5 per certificate.

Allows a Notary to charge a travel fee provided: (a) the Notary and person requesting the notarial act the Notary agree upon the travel fee in advance of the travel; and (b) the Notary explains to the person requesting the notarial act that the travel fee is both separate from the notarial fee and is neither specified nor mandated by law.

Clarifies that nothing in Chapter 1 of Title 26 of the South Carolina Code compels a Notary to charge a fee.

Requires a Notary who charges a fee to display conspicuously in the Notary’s place of business, or present to each principal outside the Notary’s place of business, an English language schedule of fees for notarial acts.

Authentication of Notarial Acts

Provides that on a notarized document sent to another state or nation, evidence of the authenticity of the official seal and signature of a South Carolina Notary, if required, shall be in the form of: (a) a certificate of authority from the Secretary of State or designated local official, authenticated as necessary by additional certificates from the United States or foreign government agencies; or (b) in the case of a notarized document to be used in a nation that has signed and ratified the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents of October 5, 1961, an Apostille from the federally designated official in the form prescribed by the Convention, with no additional authenticating certificates required.

Provides that a certificate of authority evidencing the authenticity of the official seal and signature of a Notary of this State shall be substantially in the following form:

Certificate of Authority for Notarial Act

I, ____________(name of Secretary of State), South Carolina Secretary of State, certify that ____________ (name of Notary), the person named in the seal and signature on the attached document, was a Notary Public for the State of South Carolina and authorized to act as such at the time of the document’s notarization. To verify this Certificate of Authority for a Notarial Act, I have affixed below my signature and seal of office this _____ day of_________, 20___. (Signature and seal of commissioning official)

Authorizes the Secretary of State may charge a reasonable fee for issuing a certificate of authority or an Apostille.

Prohibits the Secretary from issuing a certificate of authority or an Apostille for a document if the Secretary has cause to believe that the certificate is desired for an unlawful or improper purpose; and further provides that the Secretary may examine not only the document for which a certificate is requested, but also any documents to which the previous seals or other certifications may have been affixed by other authorities, and that the Secretary may request any additional information that may be necessary to establish that the requested certificate will serve the interests of justice and is not contrary to public policy, including a certified or notarized English translation of document text in a foreign language.

Prohibits the Secretary from issuing a certificate of authority or an Apostille if: (a) a seal or signature cannot be authenticated by either the Secretary or another official; (b) the seal or signature is of a foreign official; or (c) the document is a facsimile, photocopy, photographic, or other reproduction of a signature or seal.

Prohibits the Secretary from including within the certificate of authority or Apostille any statement that is not within the Secretary’s power or knowledge to authenticate.

Prohibits the Secretary from certifying that a document has been executed or certified in accordance with the law of any particular jurisdiction or that a document is a valid document in a particular jurisdiction.

Prohibited Acts

Prohibits a Notary from performing a notarial act if the principal or subscribing witness is not in the Notary’s presence at the time the act is performed.

Prohibits a Notary from performing a notarial act if the principal or subscribing witness is not personally known to the Notary or identified by the Notary through satisfactory evidence.

Prohibits a Notary from performing a notarial act if the Notary is a signer of, party to, or beneficiary of the record that is to be notarized. (Note: the new law provides the following exceptions: the Notary is an employee of a court within the unified judicial system, is named in a record solely as the trustee in a deed of trust, is the drafter of the record, is the person to whom a registered document must be mailed or sent after recording, or is the attorney for a party to the record, so long as the Notary is not also a party to the record individually or in some other representative or fiduciary capacity; or the Notary will receive directly from a transaction connected with the notarial act any commission, fee, advantage, right, title, interest, cash, property, or other consideration exceeding in value the fees specified in Section 26-1-100, other than fees or other consideration paid for services rendered by a licensed attorney, a licensed real estate broker or salesperson, a motor vehicle dealer, or a banker.)

Prohibits a Notary from notarizing a signature (a) on a blank or incomplete document; or (b) on a document without notarial certificate wording.

Prohibits a Notary from certifying or authenticating a photograph or photocopy.

Prohibits a Notary who is not an attorney licensed to practice law in South Carolina from rendering a service that constitutes the unauthorized practice of law.

Prohibits a nonattorney Notary from assisting another person in drafting, completing, selecting, or understanding a record or transaction requiring a notarial act, but does not prohibit an employee of any court within the unified judiciary system, acting within the scope of employment, from assisting an individual with filing a document with the court, provided that the assistance does not constitute the unauthorized practice of law.

Prohibits a Notary from making claims to have powers, qualifications, rights, or privileges that the office of Notary does not provide, including the power to counsel on immigration matters.

Prohibits a Notary from executing a certificate that is not written in the English language, but allows a Notary to execute a certificate written in the English language that accompanies a record written in another language, which record may include a translation of the notarial certificate into the other language; and further clarifies that the Notary shall execute only the English language certificate.

Advertising

Prohibits a Notary from using the term “notario publico” or any equivalent non-English term in any business card, advertisement, notice, or sign.

Requires a non-attorney Notary who advertises Notary services in a language other than English, by radio, television, signs, pamphlets, newspapers, other written communication, or in another manner, to post or otherwise include with the advertisement the following in conspicuous size and in English and in the language used for the advertisement: “I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN THE STATE OF SOUTH CAROLINA, AND I MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE”; and further provides that the notice must provide the fees for notarial acts specified in Section 26-1-100, and if the advertisement is by radio or television, the statement may be modified but must include substantially the same message.

Criminal Acts and Remedies

Provides that except as otherwise permitted by law, a person who commits one of the following acts is guilty of a misdemeanor: (a) holding one’s self out to the public as a Notary if the person does not have a commission; (b) performing a notarial act if the person’s commission has expired or been suspended or restricted; or (c) performing a notarial act before the person had taken the oath of office.

Provides that a Notary is guilty of a misdemeanor if the Notary takes: (a) an acknowledgment or administers an oath or affirmation without the principal appearing in person before the Notary; (b) a verification or proof without the subscribing witness appearing in person before the Notary; (c) an acknowledgment or administers an oath or affirmation without personal knowledge or satisfactory evidence of the identity of the principal; (d) a verification or proof without personal knowledge or satisfactory evidence of the identity of the subscribing witness; or (e) an acknowledgment or a verification or proof or administers an oath or affirmation if the Notary knows it is false or fraudulent.

Provides that it is a misdemeanor for a person to perform notarial acts in South Carolina with the knowledge that he is not commissioned.

Provides that a person who without authority obtains, uses, conceals, defaces, or destroys the seal or notarial records of a Notary is guilty of a misdemeanor.

Provides that a person who knowingly solicits, coerces, or in a material way influences a Notary to commit official misconduct is guilty of aiding and abetting, a misdemeanor, and is subject to the same level of punishment as the Notary.

Clarifies that the sanctions and remedies in Title 26, Chapter 1 of the South Carolina Code supplement other sanctions and remedies provided by law.

Provides that a Notary public convicted of any of the misdemeanors listed above must forfeit the commission and must not be issued another commission, and further provides that the court in which the Notary is convicted shall notify the Secretary of State within 10 days after conviction.

Provides that a person who violates the provisions of 1-5 above is commits a misdemeanor and, upon conviction, must be fined not more than $500 or imprisoned for not more than 30 days.

Status Changes

Requires that within 45 days after the following changes in a Notary’s status, the Notary must notify the Office of the Secretary of State of the: (a) change of a Notary’s residence, business, or a mailing address or telephone number; (b) legal change of a Notary’s name; and (c) change of a Notary’s county of residence.

Provides that a Notary with a new name may continue to use the former name in performing notarial acts until the Notary receives a confirmation of Notary’s Name Change Form from the Secretary, and that upon receipt of the confirmation of the Notary’s Name Change Form, the Notary must use the new name, and must destroy or deface all Notary seals bearing the former name so that they may not be misused.

Provides that the commission of a Notary who notifies the Secretary of State of a change in the Notary’s residence, business, or a mailing address or telephone number and of a legal change of the Notary’s name will expire at the same time as the original term.

Clarifies that a Notary who has moved to another county in South Carolina remains commissioned until the current commission expires, is not required to obtain a new seal, and may continue to notarize without changing the seal.

Requires that changes in status mentioned in 1-3 above must be made on a Change in Status Form, accompanied by a fee of $10, and in a form and manner that is prescribed by the Secretary.

Requires a Notary who resigns the Notary’s commission to submit to the Secretary a Change in Status Form indicating the effective date of resignation and to destroy or deface all Notary seals so that they may not be misused.

Clarifies that a Notary who ceases to reside in South Carolina, or who becomes permanently unable to perform his notarial duties, must resign his commission and submit to the Secretary a Change in Status Form indicating the effective date of resignation.

Provides that if a Notary dies during the term of commission, the Notary’s personal representative must: (a) notify the Secretary of State of the death in writing; and (b) as soon as reasonably practicable, destroy or deface all Notary seals so that they may not be misused.

General Changes and Construction

Clarifies that the provisions in Title 26, Chapter 1 of the South Carolina Code shall not be construed (interpreted) to contradict the requirements regarding the attestation and self-proving of last wills contained in SCC 62-2-503.

Makes technical and non-substantive conforming changes.

Analysis:

Most of South Carolina’s Notary laws date back over 50 years and the last revision was made in 1997. Senate Bill 356 comprehensively enacts Notary reforms long overdue. The provisions outlining how a Notary is to identify document signers is particularly welcome, as is the increase in the fees Notaries may charge for their services to $5 for most notarial acts. The new law also contains clear prohibitions and crimes, which should raise the professionalism and ethics of persons holding a South Carolina Notary commission. Many of the provisions are based in whole or in part on the Model Notary Act of 2010. In particular, the identification provisions, many of the definitions and certain prohibited acts – such as the Notary being prohibited from notarizing a blank or incomplete document, a photograph, or a document without a notarial certificate – are from the Model Notary Act. However, most of this new law is unique to South Carolina and some of the provisions are confusing, and even puzzling. For example, “attestations” and “jurats” are labeled notarial acts, but are then defined to simply mean the notarial certificate a Notary completes. Similarly, “verification of fact” is cited as an authorized act following the Model Notary Act, but the definition of “verification” makes clear that it is essentially a proof of execution by subscribing witness and not the same act as proposed in the Model Notary Act. “Signature witnessings” are also a new notarial act, but there is no definition or standards for how this act is to be executed. These confusing provisions may require attention in future legislation or guidance from the Secretary of State. Interestingly, SB 356 relies on the Model Notary Act for provisions on signature by mark and signature by the Notary signing for a document signer who cannot sign or make a mark. But then it also includes another provision authorizing a third party to sign for the physically challenged signer. No state has all three provisions. Curiously, there is a definition of the term “record” in SB 356 which includes electronic documents, giving hope that this new law would contain standards for the use of electronic signatures by Notaries. However, this was not the case. The new law is essentially a statute on paper-based notarizations. We also wish that SB 356 would have required Notaries to keep a journal and post a surety bond. The new law took effect upon approval by the Governor on June 2, 2014.